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HomeMy WebLinkAbout4338RESOLUTION NO.4 3 3 8 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A PUBLIC WAY AGREEMENT BETWEEN THE CITY OF AUBURN AND MCI COMMUNICATIONS SERVICES, INC. WHEREAS, MCI Communications Services Inc. has applied to the City for a non-exclusive Public Way Agreement for the right of entry, use, and occupation of certain public rights-of-way within the City of Auburn, expressly to install, construct, erect, operate, maintain, repair, relocate and remove its facilities in, on, upon, along and/or across those right(s)-of-way; and WHEREAS, the City has reviewed MCI Communications Services' application and determined that the location of MCI Communications Services' facilities within the requested rights-of-way is in the best interest of the City and the citizens of Auburn, NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, KING COUNTY, WASHINGTON, HEREBY RESOLVES as follows: Section 1. The Mayor of the City of Auburn and the Auburn City Clerk are hereby authorized to execute a Public Way Agreement between the City of Auburn and MCI Communications Services, Inc., which agreement shall be in Resolution No. 4338 March 31, 2008 Page 1 of 2 substantial conformity with the Agreement a copy of which is attached hereto, marked as Exhibit "1" and incorporated herein by this reference. Section 2. The Mayor is hereby authorized to implement such administrative procedures as may be necessary to carry out the directives of this legislation. Section 3. This resolution shall be in full force and effect upon passage and signatures hereon. < Dated and Signed this 1 day of , 2008. 1 P TER B. LEWIS MAYOR ATTEST: Dani E. Daskam, City Clerk Resolution No. 4338 March 31, 2008 Page 2 of 2 CITY OF AUBURN PUBLIC WAY AGREEMENT WITH MCI COMMUNICATIONS SERVICES, INC. This Public Way Agreement is entered into by and between the City of Auburn, Washington, a municipal corporation ("City") and MCI Communications Services, Inc., a Delaware corporation ("Grantee"). WHEREAS, Grantee has applied to the City for a non-exclusive Public Way Agreement for the right of entry, use, and occupation of certain public right(s)-of-way within the City of Auburn, expressly to install, construct, erect, operate, maintain, repair, relocate and remove its facilities in, on, upon, along and/or across those right(s)-of-way; and WHEREAS, the City has reviewed the Grantee's application and determined that the location of Grantee's facilities within the requested right(s)- of-way is in the best interest of the City and the citizens of Auburn, NOW, THEREFORE, in consideration of the mutual benefits and conditions set forth below, the parties hereto agree as follows: Section 1. Notice A. Written notices to the parties shall be sent by certified mail to the following addresses, unless a different address shall be designated in writing and delivered to the other party. City: Right-of-Way Manager City of Auburn 25 West Main Street Auburn, WA 98001-4998 Telephone: (253) 931-3010; Fax: (253) 931-3048 with a copy to: City Clerk City of Auburn 25 West Main Street Auburn, WA 98001-4998 Grantee: MCI Communications Services, Inc. Attn: Manager, Municipal Affairs 2400 N. Glenville Dr. Richardson, TX 75082 Resolution No. 4338 Exhibit "1" April 15, 2008 Page 1 With a copy to: Verizon Business, Legal and External Affairs Attn: Associate General Counsel 205 North Michigan Ave. Sixth Floor Chicago, IL 60601 B. Any changes to the above-stated Grantee information shall be sent to the City's Right-of-Way Manager, with copies to the City Clerk, referencing the title of this agreement. C. The above-stated Grantee voice and fax telephone numbers shall be staffed at least during normal business hours of 8 AM to 5 PM Pacific Standard time. Section 2. Grant of Right to Use Public Way A. Subject to the terms and conditions stated herein, the City grants to the Grantee general permission to enter, use, and occupy the right(s)-of-way specified in Exhibit "A," attached hereto and incorporated by reference (the "Public Way"). The Grantee shall place Grantee Facilities within the City Conduit Route set forth in Exhibit A, unless the Grantee determines that the route is impracticable for such use, in which case the Grantee shall place Grantee Facilities within the Qwest Conduit Route set forth in Exhibit A. Should the Grantee and the City agree that neither of these routes are practicable, the Grantee shall place Grantee Facilities along an alternate route within the Public Way, which may consist of the New Conduit Route set forth in Exhibit A or a mutually agreeable route including a portion of the New Conduit Route and portions of the City and Qwest Conduit Routes, the use of which shall be on terms mutually agreeable between the conduit owner and the Grantee. The routes shall be subject to the following additional terms: 1. City Conduit Route. Should the Grantee choose to make use of existing City conduit, the City shall then make one (1) conduit of one and one quarter inches (1 1/4") in size available to Grantee along that route at a rate of Thirty-Five Cents ($0.35) per lineal foot of conduit per year. The Grantee shall place for the City a mutually agreed upon amount of twenty-four (24) strand optical cable into City conduit along the route. For those portions of the City Conduit Route in which the Grantee will construct new conduit, the Grantee shall construct for the City, and connect to existing City conduits, one (1) three inch (3") conduit along with related structures necessary to access the conduit ("New City Conduit") that shall be in addition to any conduits to be owned or used by Grantee. The New City Conduit is provided as consideration for leasing existing City conduit, and is not subject to the provisions of RCW 35.99.070. The parties --------------------- Resolution No. 4338 Exhibit "1" April 15, 2008 Page 2 agree to negotiate in good faith an agreement encompassing the terms of this subsection and any other mutually agreeable terms. 2. Qwest Conduit Route. Should the Grantee choose to make use of Qwest's existing conduit, and should the Grantee be constructing new conduit along any portion of that route, the City may require the Grantee to install for the City, one (1) three inch (3") conduit, along with related structures necessary to access the conduit. The Grantee shall charge its incremental costs in installing said conduit to the City. Conduit provided pursuant to this subsection is subject to the provisions of RCW 35.99.070, and the parties agree that they shall negotiate in good faith an agreement meeting the requirements of RCW 80.36.150 that establishes the incremental costs of providing the new City conduits, the specific equipment required by the City, and any other terms mutually agreeable to the parties or required under RCW 35.99.070. 3. New Conduit Route. Should the Grantee choose to construct new conduit along the New Conduit Route, the Grantee shall install for the City, one (1) three inch (3") conduit, along with related structures necessary to access the conduit. The Grantee shall charge its incremental costs in installing said conduit to the City. Conduit provided pursuant to this subsection is subject to the provisions of RCW 35.99.070, and the parties agree that they shall negotiate in good faith an agreement meeting the requirements of RCW 80.36.150 that establishes the incremental costs of providing the new City conduits, the specific equipment required by the City, and any other terms mutually agreeable to the parties or required under RCW 35.99.070. 4. Alternate Route. Should the Grantee and the City agree to an alternate route using portions of the City Conduit Route, the Qwest Conduit Route, and/or the New Conduit Route, the terms of the New Conduit Route shall apply to all newly constructed conduit along the alternate route, and the Grantee shall provide optical cable to the City along the alternate route per the provisions of the City Conduit Route. B. The Grantee is authorized to install, remove, construct, erect, operate, maintain, relocate and repair the facilities specified in Exhibit "B," attached hereto and incorporated by reference, and all necessary appurtenances thereto, ("Grantee Facilities") for provision of lawful communications, including, without limitation, long distance voice and data communications and other lawful communications as disclosed to the City from time to time ("Grantee Services") in, along, under and across the Public Way, for the sole purpose of providing commercial utility or telecommunications services to persons or areas outside the City. C. This Public Way Agreement does not authorize the use of the Public Way for any facilities or services other than Grantee Facilities and Resolution No. 4338 Exhibit "1" April 15, 2008 Page 3 Grantee Services, and it extends no rights or privilege relative to any facilities or services of any type, including Grantee Facilities and Grantee Services, elsewhere within the City. D. This Public Way Agreement is non-exclusive and does not prohibit the City from entering into other agreements, including Public Way Agreements, impacting the Public Way, unless the City determines that entering into such agreements interferes with Grantee's right set forth herein. E. Except as explicitly set forth herein, this Public Way Agreement does not waive any rights that the City has or may hereafter acquire with respect to the Public Way or any other City roads, rights-of-way, property, or any portions thereof. This Public Way Agreement shall be subject to the power of eminent domain, and in any proceeding under eminent domain, the Grantee acknowledges its use of the Public Way shall have no value. F. The City reserves the right to change, regrade, relocate, abandon, or vacate the Public Way. If, at any time during the term of this Public Way Agreement, the City vacates any portion of the Public Way, the City shall reserve an easement for public utilities within that vacated portion, pursuant to RCW 35.79.030, within which the Grantee may continue to operate the Grantee Facilities under the terms of this Public Way Agreement for the remaining period set forth under Section 3. G. The Grantee agrees that its use of Public Way shall at all times be subordinated to and subject to the City and the public's need for municipal infrastructure, travel, and access to the Public Way, except as may be otherwise required by law. H. Should the Grantee seek to services, including Grantee Services, to Grantee shall apply for, obtain, and comply agreement for such use. Section 3. Term of Agreement use the Public Way to provide City residents or businesses, the with the terms of a City franchise A. This Public Way Agreement shall run for a period of five (5) years, from the date of execution specified in Section 5. B. Renewal Option of Term: The Grantee may renew this Public Way Agreement for an additional five (5) year period upon submission and approval of the application specified under ACC 20.04.120, as it now exists or is amended, within the timeframe set forth therein (currently 180 to 120 days prior to expiration of the then-current term). Any materials submitted by the Grantee for a previous application may be considered by the City in reviewing a current --------------------- Resolution No. 4338 Exhibit "1" April 15, 2008 Page 4 application, and the Grantee shall only submit those materials deemed necessary by the City to address changes in the Grantee Facilities or Grantee Services, or to reflect specific reporting periods mandated by the ACC. Section 4. Definitions For the purpose of this agreement: "ACC" means the Auburn City Code. "Emergency" means a condition of imminent danger to the health, safety and welfare of Persons or property located within the City including, without limitation, damage to Persons or property from natural consequences, such as storms, earthquakes, riots, acts of terrorism or wars. "Maintenance or Maintain" shall mean examining, testing, inspecting, repairing, maintaining and replacing the existing Grantee Facilities or any part thereof as required and necessary for safe operation. "Relocation" means permanent movement of Grantee facilities required by the City for City purposes, and not temporary or incidental movement of such facilities, or other revisions Grantee would accomplish and charge to third parties without regard to municipal request. "Rights-of-Way" means the surface and the space above and below streets, roadways, highways, avenues, courts, lanes, alleys, sidewalks, easements, rights-of-ways and similar public properties and areas. Section 5. Acceptance of Public Way Agreement A. This Public Way Agreement, and any rights granted hereunder, shall not become effective for any purpose unless and until Grantee files with the City Clerk (1) the Statement of Acceptance, attached hereto as Exhibit "C," and incorporated by reference, (2) all verifications of insurance coverage specified under Section 15, and (3) the financial guarantees specified in Section 16 (collectively, "Public Way Acceptance"). The date that such Public Way Acceptance is filed with the City Clerk shall be the effective date of this Public Way Agreement. B. Should the Grantee fail to file the Public Way Acceptance with the City Clerk within thirty (30) days after the effective date of the resolution approving the Public Way Agreement, said agreement will automatically terminate and shall be null and void. --------------------- Resolution No. 4338 Exhibit "1" April 15, 2008 Page 5 Section 6. Construction and Maintenance A. The Grantee shall apply for, obtain, and comply with the terms of all permits required under ACC Chapter 12.24 for any work done upon Grantee Facilities. Grantee shall comply with all applicable City, State, and Federal codes, rules, regulations, and orders in undertaking such work, which shall be done in a thorough and proficient manner. B. Grantee agrees to coordinate its activities with the City and all other utilities located within the Public Way. C. The City expressly reserves the right to prescribe how and where Grantee Facilities shall be installed within the Public Way and may from time to time, pursuant to the applicable sections of this Public Way Agreement, require the removal, relocation and/or replacement thereof in the public interest and safety at the expense of the Grantee. D. Before commencing any work within the Public Way, the Grantee shall comply with the One Number Locator provisions of RCW Chapter 19.122 to identify existing utility infrastructure. Section 7. Repair and Emergency Work In the event of an emergency, the Grantee may commence such repair and emergency response work as required under the circumstances, provided that the Grantee shall notify the City Right-of-Way Manager in writing as promptly as possible, before such repair or emergency work commences, or as soon thereafter as possible, if advance notice is not practicable. The City may act, at any time, without prior written notice in the case of emergency, but shall notify the Grantee in writing as promptly as possible under the circumstances. Section 8. Damages to City and Third-Party Property Grantee agrees that should any of its actions under this Public Way Agreement impairs or damages any City property, survey monument, or property owned by a third-party, Grantee will restore, at its own cost and expense, said property to a safe condition. Such repair work shall be performed and completed to the satisfaction of the City Engineer. Section 9. Location Preference A. Any structure, equipment, appurtenance or tangible property of a privately-owned utility, other than the Grantee's, which was installed, constructed, completed or in place prior in time to Grantee's application for a permit to construct --------------------- Resolution No. 4338 Exhibit "1" April 15, 2008 Page 6 or repair Grantee Facilities under this Public Way Agreement shall have preference as to positioning and location with respect to the Grantee Facilities. However, to the extent that the Grantee Facilities are completed and installed prior to new or additional structures, equipment, appurtenances or tangible property of an earlier privately-owned utility being installed or completed, then the Grantee Facilities shall have priority. These rules governing preference shall continue in the event of the necessity of relocating or changing the grade of any such City road or right-of-way. A relocating utility shall not necessitate the relocation of another utility that otherwise would not require relocation. This Section shall not apply to any City facilities or utilities that may in the future require the relocation of Grantee Facilities. Such relocations shall be governed by Section 11. B. Grantee shall maintain a minimum underground horizontal separation of five (5) feet from City water facilities and ten (10) feet from above- ground City water facilities; provided, that for development of new areas, the City, together with Grantee and other utility purveyors or authorized users of the Pubic Way, will develop and follow the Public Works Director's determination of a consensus for guidelines and procedures for determining specific utility locations, subject additionally to this agreement and to a Franchise agreement, should one become necessary. Section 10. Grantee Information A. Grantee agrees to supply, at no cost to the City, such information as the Director of Public Works, or Right-of-Way Manager, find necessary to coordinate municipal functions with Grantee's activities and to fulfill any municipal obligations under state law. Said information shall include, at a minimum; quarterly statements due on the first day of January, April, July, and October of each year detailing any changes in the information submitted as part of Grantee's Public Way Agreement application as set forth in Exhibit "D," attached hereto and incorporated by reference; as-built drawings of Grantee Facilities; installation inventory; and maps and plans showing the location of existing or planned facilities within the City. Said information may be requested either in hard copy and/or electronic format, compatible with the City's data base system, as now or hereinafter existing, including the City's geographic information Service (GIS) data base. Grantee shall keep the Right-of-Way Manager informed of its long-range plans for coordination with the City's long-range plans. B. The parties understand that Washington law limits the ability of the City to shield from public disclosure any information given to the City. Accordingly, the parties agree to work together to avoid disclosures of information which would result in economic loss or damage to Grantee because of mandatory disclosure requirements to third persons. In the event the parties cannot agree, the dispute shall be submitted to the City Hearing Examiner, subject to the record before the --------------------- Resolution No. 4338 Exhibit "1" April 15, 2008 Page 7 Hearings Examiner. Notwithstanding this option, Grantee shall indemnify and hold harmless the City for any loss or liability for costs for attorneys fees because of non-disclosures requested by Grantee under Washington's open public records law, provided reasonable notice and opportunity to defend was given to Grantee or Grantee is made aware of the pending of a request or claim. Section 11. Relocation, of Grantee Facilities A. Except as otherwise so required by law, Grantee agrees to relocate, remove, or reroute its facilities at its sole expense and liability and at no expense or liability to the City, except as may be required by RCW Chapter 35.99, as ordered by the City Engineer for City purposes, and upon sixty (60) days written notice from the City. Pursuant to the provisions of Section 14, Grantee agrees to protect and save harmless the City from any customer or third-party claims for service interruption or other losses in connection with any such change, relocation, abandonment, or vacation of the Public Way. B. In the event that the Public Way shall become a Primary State Highway as provided by law, the State Department of Transportation may order the Grantee to perform or undertake, at its sole expense, changes to the location of Grantee Facilities so that the same shall not interfere with such state highway and so that such facilities shall conform to such new grades or routes as may be established. C. If a readjustment or relocation of the Grantee Facilities is necessitated by a request from a party other than the City, that party shall pay the Grantee the actual costs thereof. Section 12. Abandonment and or Removal of Grantee Facilities A. Within one hundred and eighty (180) days of Grantee's permanent cessation of use of the Grantee Facilities, or any portion thereof, the Grantee shall, at the City's discretion, either abandon in place or remove the affected facilities. B. The parties expressly agree that this Section shall survive the expiration, revocation or termination of this Public Way Agreement. Section 13. Undergrounding A. The parties agree that this Public Way Agreement does not limit the City's authority under federal law, state law, or the ACC, to require the undergrounding of utilities. B. Whenever the City requires the undergrounding of aerial utilities in the Public Way, the Grantee shall underground the Grantee Facilities in the --------------------- Resolution No. 4338 Exhibit "1" April 15, 2008 Page 8 manner specified by the City Engineer, and where other utilities are present and involved in the undergrounding project, Grantee shall only be required to pay its fair share of common costs borne by all utilities, in addition to the costs specifically attributable to the undergrounding of Grantee Facilities. Common costs shall include necessary costs for common trenching and utility vaults. Fair share shall be determined in comparison to the total number and size of all other utility facilities being undergrounded. Section 14. Indemnification and Hold Harmless A. The Grantee shall defend, indemnify, and hold the City and its officers, officials, agents, employees, and volunteers harmless from any and all costs, claims, injuries, damages, losses, suits, or liabilities of any nature including attorneys' fees arising out of or in connection with the Grantee's performance under this Public Way Agreement, except to the extent such costs, claims, injuries, damages, losses, suits, or liabilities are caused by the negligence of the City. B. The Grantee shall hold the City harmless from any liability arising out of or in connection with any damage or loss to the Grantee Facilities caused by maintenance and/or construction work performed by, or on behalf of, the City within the Public Way or any other City road, right-of-way, or other property, except to the extent any such damage or loss is directly caused by the negligence of the City, or its agent performing such work. C. The Grantee acknowledges that neither the City nor any other public agency with responsibility for fire fighting, emergency rescue, public safety or similar duties within the City has the capability to provide trench, close trench or confined space rescue. The Grantee, and its agents, assigns, successors, or contractors, shall make such arrangements as Grantee deems fit for the provision of such services. The Grantee shall hold the City harmless from any liability arising out of or in connection with any damage or loss to the Grantee for the City's failure or inability to provide such services, and, pursuant to the terms of Section 14(A), the Grantee shall indemnify the City against any and all third- party costs, claims, injuries, damages, losses, suits, or liabilities based on the City's failure or inability to provide such services. D. Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Grantee and the City, its officers, officials, employees, and volunteers, the Grantee's liability hereunder shall be only to the extent of the Grantee's negligence. It is further specifically and expressly understood that the indemnification provided herein constitutes the --------------------- Resolution No. 4338 Exhibit "1" April 15, 2008 Page 9 City's and Grantee's waivers of immunity under Industrial Insurance, Title 51 RCW, solely for the purposes of the indemnifications set forth in this Section 14. This waiver has been mutually negotiated by the parties. The provisions of this section shall survive the expiration or termination of this Agreement. E. Acceptance by the City of any work performed by the Grantee shall not be grounds for avoidance of this section. Section 15. Insurance A. The Grantee shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with activities or operations performed by or on the Grantee's behalf with the issuance of this Agreement. Grantee shall obtain insurance of the type described below: 1. Automobile Liability insurance covering all owned, non- owned, hired, and leased vehicles with a minimum combined single limit for bodily injury and property damage of $1,000,000 per accident. Coverage shall be written on Insurance Services Office (ISO) form or a substitute form providing equivalent liability coverage. 2. Commercial General Liability insurance with combined single limits no less than $1,000,000 each occurrence, $2,000,000 general aggregate, and a $2,000,000 products-completed operation aggregate limit. Coverage shall be written on ISO occurrence form or equivalent and shall cover liability arising from premises, operations, independent contractors, products- completed operations, and personal injury and advertising injury and contractual liability. Limits can be satisfied by a combination of commercial general liability and Excess Liability. There shall be no endorsement or modification of the Commercial General Liability insurance for liability arising from explosion, collapse, or underground property damage. The City shall be named as an additional insured as their interest may appear under the Grantee's Commercial General Liability insurance policy with respect to the work performed under this Public Way Agreement. 3. Professional Liability insurance with limits no less than $1,000,000 per claim and aggregate. 4. Workers' Compensation coverage as required by the Industrial Insurance laws of the State of Washington. Employer's Liability $1,000,000 each accident/disease/policy limit (Stop Gap Liability included in Employer's Liability.) Resolution No. 4338 Exhibit "1" April 15, 2008 Page 10 B. The insurance policies are to contain, or be endorsed to contain, the following provisions for Automobile Liability, and Commercial General Liability insurance: 1. The Grantee's insurance coverage shall be primary insurance as respects the City. Any insurance, self-insurance, or insurance, pool coverage maintained by the City shall be in excess of the Grantee's insurance and shall not contribute with it. C. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best rating of not less than A:VII. D. Verification of Coverage. Grantee shall furnish the City with original certificates and a copy of the mandatory endorsements, including the additional insured endorsement, evidencing the insurance requirements of the Grantee before commencement of the work. The certificates shall contain a provision stating that the insurer or its authorized representative shall endeavor to provide thirty (30) days prior written notice by certified mail, return receipt requested, has been given by the City. E. Grantee shall have the right to self-insure any or all of the above- required insurance. F. Grantee's maintenance of insurance as required by this Agreement shall not be construed to limit the liability of Grantee to the coverage provided by such insurance, or otherwise limit the City's recourse to any remedy to which the City is otherwise entitled at law or in equity. Section 16. Performance Security Pursuant to ACC Chapter 20.10, the Grantee shall provide the City with a financial guarantee as specified in ACC Section 20.10.250, in a form and substance acceptable to the City, securing the Grantee's faithful compliance with the terms of this Public Way Agreement. Such guarantee shall be in the amount of Fifty Thousand dollars ($50,000.00). Section 17. Successors and Assignees A. All the provisions, conditions, regulations and requirements herein contained shall be binding upon the successors, assigns of, and independent contractors of the Grantee, and all rights and privileges, as well as all obligations and liabilities of the Grantee shall inure to its successors, assignees and --------------------- Resolution No. 4338 Exhibit "1" April 15, 2008 Page 11 contractors equally as if they were specifically mentioned herein wherever the Grantee is mentioned. B. This public way agreement shall not be leased, assigned or otherwise alienated without the express consent of the City by resolution, which approval shall not be unreasonably withheld. C. Grantee and any proposed assignee or transferee shall provide and certify the following to the City not less than one hundred twenty (120) days prior to the proposed date of transfer: (a) Complete information setting forth the nature, term and conditions of the proposed assignment or transfer; (b) All information required by the City of an applicant for a Public Way Agreement with respect to the proposed assignee or transferee; and, (c) An application fee which shall be set by the City, plus any other costs actually and reasonably incurred by the City in processing, and investigating the proposed assignment or transfer. Section 18. Dispute Resolution A. In the event of a dispute between the City and the Grantee arising by reason of this Agreement, the dispute shall first be referred to the operational officers or representatives designated by Grantor and Grantee to have oversight over the administration of this Agreement. The officers or representatives shall meet within fifteen (15) calendar days of either party's request for a meeting, whichever request is first, and the parties shall make a good faith effort to achieve a resolution of the dispute. B. If the parties fail to achieve a resolution of the dispute in this manner, either party may then pursue any available judicial remedies. This Public Way Agreement shall be governed by and construed in accordance with the laws of the State of Washington. In the event any suit, arbitration, or other proceeding is instituted to enforce any term of this Agreement, the parties specifically understand and agree that venue shall be exclusively in King County, Washington. The prevailing party in any such action shall be entitled to its attorneys' fees and costs of suit, which shall be fixed by the judge hearing the case, and such fees shall be included in the judgment. Section 19. Enforcement and Remedies A. If the Grantee shall willfully violate, or fail to comply with any of the provisions of this Public Way Agreement through willful intent or gross negligence, or should it fail to heed or comply with any notice given to Grantee under the provisions of this agreement, the City may, at its discretion, provide Grantee with written notice to cure the breach within thirty (30) days of notification. If the City determines the breach cannot be cured within thirty -- ------------------ Resolution No. 4338 Exhibit "1" April 15, 2008 Page 12 days, the City may specify a longer cure period, and condition the extension of time on Grantee's submittal of a plan to cure the breach within the specified period, commencement of work within the original thirty day cure period, and diligent prosecution of the work to completion. If the breach is not cured within the specified time, or the Grantee does not comply with the specified conditions, the Grantee, and its successors or assignees, shall forfeit all rights conferred hereunder, and the Public Way Agreement may be revoked or annulled by the City with no further notification. B. Should the City determine that Grantee is acting beyond the scope of permission granted herein for Grantee Facilities and Grantee Services, the City reserves the right to cancel this Public Way Agreement upon thirty days (30) written notice to Grantee and require the Grantee to apply for, obtain, and comply with all applicable City permits, franchises, or other City permissions for such actions, and if the Grantee's actions are not allowed under the Auburn City Code, to compel Grantee to cease such actions. Section 20. Compliance with Laws and Regulations A. This Public Way Agreement is subject to, and the Grantee shall comply with all applicable federal and state or City laws, regulations and policies (including all applicable elements of the City's comprehensive plan), in conformance with federal laws and regulations, affecting performance under this Public Way Agreement. Furthermore, notwithstanding any other terms of this agreement appearing to the contrary, the Grantee shall be subject to the police power of the City to adopt and enforce general ordinances necessary to protect the safety and welfare of the general public in relation to the rights granted in the Public Way. B. The City reserves the right at any time to amend this Public Way Agreement to conform to any hereafter enacted, amended, or adopted federal or state statute or regulation relating to the public health, safety, and welfare, or relating to roadway regulation, or a City Ordinance enacted pursuant to such federal or state statute or regulation upon providing Grantee with thirty (30) days written notice of its action setting forth the full text of the amendment and identifying the statute, regulation, or ordinance requiring the amendment. Said amendment shall become automatically effective upon expiration of the notice period unless, before expiration of that period, the Grantee makes a written call for negotiations over the terms of the amendment. If the parties do not reach agreement as to the terms of the amendment within thirty (30) days of the initial notice, the City may enact the proposed amendment, by incorporating the Grantee's concerns to the maximum extent the City deems possible. --------------------- Resolution No. 4338 Exhibit "1" April 15, 2008 Page 13 C. The City may terminate this Public Way Agreement upon thirty (30) days written notice to the Grantee, if the Grantee fails to comply with such amendment or modification. Section 21. License, Tax and Other Charges This Public Way Agreement shall not exempt the Grantee from any future license, tax, or charge which the City may hereinafter adopt pursuant to authority granted to it under state or federal law for revenue or as reimbursement for use and occupancy of public ways. Section 22. Consequential Damages Limitation Notwithstanding any other provision of this Agreement, in no event shall either party be liable for any special, incidental, indirect, punitive, reliance, consequential or similar damages. Section 23. Severability If any portion of this Public Way Agreement is deemed invalid, the remainder portions shall remain in effect. Section 24. Titles The section titles used herein are for reference only and should not be used for the purpose of interpreting this Public Way Agreement. DATED and SIGNED this : l day of 2VY PETER B. LEWIS MAYOR --------------------- Resolution No. 4338 Exhibit "1" April 15, 2008 Page 14 ATTEST: Danielle E. Daskam, City Clerk APPROVED AS TO FORM: dniel B. Heid, ity Attorney Resolution No. 4338 Exhibit "1" April 15, 2008 Page 15 EXHIBIT "C" STATEMENT OF ACCEPTANCE MCI Communications Services, Inc., for itself, its successors and assigns, hereby accepts and agrees to be bound by all lawful terms, conditions and provisions of the Public Way Agreement attached hereto and incorporated herein by this reference. MCI Communications Services, Inc. By: _ Name: Title: STATE OF ) )ss. COUNTY OF ) Date: On this day of , 2006, before me the undersigned, a Notary Public in and for the State of duly commissioned and sworn, personally appeared, of MCI Communications Services, Inc., the company that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said company, for the uses and purposes therein mentioned, and on oath stated that he/she is authorized to execute said instrument. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal on the date hereinabove set forth. Signature NOTARY PUBLIC in and for the State of , residing at MY COMMISSION EXPIRES: --------------------- Resolution No. 4338 Exhibit "1" April 15, 2008 Page 16 I11111111111IYICI New Conduit Route 111111111111Qwest Conduit Route City Conduit Route Resolution No. 4338 Exhibit IAA" pq 1 i 0 A & ? -Z77 7-- F Potential Conduit Route Resolution No. 433E Exhibit IAA" pJ Z 4 ------ _ VV AA=in Qt ti/. ,t JON. Jew 1 r Qwest tiiA 3rd St Sw ' ??? ;4N Y R NANO fir Z -Z - 1 a 4. -- N 16 - Jri ` 6.4 e'ico O OF` ie- F ; ?.F r % i l GS ^. ??? *ILlIyl`?i . f s.; .. Exhibit "B" Resolution No. 4338 Grantee Facilities & Services MCI Communications Services, Inc. ("MCI") is a registered telecommunication company authorized to provide long distance services in the State of Washington by the Washington Utilities and Transportation Committee. The proposed project will expand MCI's telecommunication network from the Burlington Northern and Santa Fe Railroad right-of-way to the existing Qwest Central Office located at 10 Second Street SE. The long distance network will not access any customers in the City of Auburn and will merely replace an existing leased third party network from the existing MCI network on the railroad right-of-way to the Qwest Central Office. Construction will be managed by the City through the utilization of a construction permit. EXHIBIT "C" STATEMENT OF ACCEPTANCE MCI Communications Services, Inc., for itself, its successors and assigns, hereby accepts and agrees to be bound by all lawful terms, conditions and provisions of the Public Way Agreement attached hereto and incorporated herein by this reference. MCI Comm a s Services, Inc. By: alr?. Name: Robert H. Bohne Title: Director STATE OF TFW ) Date: 4-a5-o8 )ss. COUNTY OF??AQ-L?}-? ) ??j (&?) On this Z6MV of 20a before me the undersigned, a Notary Public in and f the St t of , duly commissioned and sworn, personally appeared, µLIF of MCI Communications Services, Inc., the company that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said company, for the uses and purposes therein mentioned, and on oath stated that he/she is authorized to execute said instrument. IN WITNESS WHEREOF, I have hereunto seal on the date hereinabove set forth. Signature set my hand and affixed my official CEIJA H. POOLE COMMISSION EXPIRES Ag113, 2012 NOTARY PUBLIC in and for the State of 7=!i?! , residing at MY COMMISSION EXPIRES: / IZ --------------------- Version Date: 04/15/2008 PUBLIC WAY AGREEMENT Page 15 EXHIBIT "C" STATEMENT OF ACCEPTANCE MCI Communications Services, Inc., for itself, its successors and assigns, hereby accepts and agrees to be bound by all lawful terms, conditions and provisions of the Public Way Agreement attached hereto and incorporated herein by this reference. MCI Communications Services, Inc. By: _ Name: Title: STATE OF ) )ss. COUNTY OF ) Date: On this day of , 2006, before me the undersigned, a Notary Public in and for the State of duly commissioned and sworn, personally appeared, of MCI Communications Services, Inc., the company that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said company, for the uses and purposes therein mentioned, and on oath stated that he/she is authorized to execute said instrument. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal on the date hereinabove set forth. Signature NOTARY PUBLIC in and for the State of , residing at MY COMMISSION EXPIRES: --------------------- Resolution No. 4338 Exhibit "1" April 15, 2008 Page 16 EXHIBIT "D" Resolution No. 4338 APPLICANT INFORMATION Identity of Applicant (including all affiliates) MCI Communications Services, Inc. (A subsidiary of Verizon) Primary contact Name: Jeff Markiewicz, Municipal Affairs Address 2400 N. Glenville Drive, Richardson, Texas 75082 phone number 972-729-7575 fax number 972-729-6700 email address jeff.markiewicz@verizonbusiness.com Marketing contact Name: www.verizonbusiness.com Address: 1-877-297-7816 phone number fax number email address Customers using the Applicant's Facility Facilities do not provide customer network access points Primary contact Name Address phone number fax number email address Other parties owning lines within the facility No other parties own lines within the MCI facilities Primary contact Name Address phone number fax number email address --------------------- Version Date: 03/19/2008 PUBLIC WAY AGREEMENT Pagel EXHIBIT "D" (Continued) Resolution No. 4338 Marketing contact Name Address phone number fax number email address System Information Location and route of the facility: Various City streets (Exhibit A) Location of interconnection with other telecommunication providers: Qwest Central Office located at 10 Second Street SE. Location of handholds, manholes, and other potential access points for local customers within 5 miles of city limits: MCI's long distance network does not provide access points directly to local customers within 5 miles of the City limits. Description of the type of line used to provide the service (Fiber, Cable etc.): 24 fiber optic cable Description of the facility (conduits, ducts, size, configuration): A single 4-inch HDPE conduit occupied by (3) 1.25-inch subducts. 1 occupied by the cable. Number of lines in the facility: 1 subduct occupied (2 spare) Capacity of the lines: 24 fibers Excess capacity - number of unused conduits and unused "dark" fiber: (2) 1.25-inch subducts spare For existing facilities: excess capacity after installation of applicant's facilities: NA Information about the Service Description of the type of telecommunications services that are or will be provided (voice, video, data etc.): Long distance telecommunications services as authorized by the Washington Utilities and Transportation Utilities Committee --------------------- Version Date: 03/19/2008 PUBLIC WAY AGREEMENT Page 2